14 Dec 2023

Deck the HR Halls: Ensuring Legal Cheer in Workplace festive Celebrations

Celebrations during the festive season can be a wonderful way to recognise hard work and highlight achievements as the year wraps up. Nevertheless, it’s important for employers to be mindful of potential challenges that may arise. 

According to a survey conducted in 2018, 10% of UK employees faced dismissal or disciplinary action after a work Christmas party. Incidents ranged from involvement in altercations, and drug use, to inappropriate behaviour, such as sexual harassment. Additionally, 8% of respondents indicated they felt compelled to quit their jobs post-Christmas party due to discomfort working with former colleagues. 

Considerations related to regulations. 

Some employers might view most incidents at a work Christmas party as internal matters, overlooking the broader regulatory implications in a friendly manner. 

Every regulatory body sets its own standards for its members, and these rules are not consistently applied across all regulators. The same variability applies to reporting requirements, including what needs to be reported, when it should be reported, the format, and the means of reporting, all of which differ from one regulator to another. It could issue a reprimand, a suspension or removal.  

Discrimination Law. 

Employers should be mindful not to unintentionally exclude employees from an event due to: 

  • Gender – in the timing of the event. For instance, temporary employees may face exclusion based on the event’s day or time, especially if it occurs during working hours or aligns with specific policies. Temporary employees are often more likely to be female, older, and/or disabled. 
  • Pregnancy and maternity – when someone is on parental leave, avoid assuming they wouldn’t like an invitation. In the Howie v Hollaways of Ludlow tribunal case, a mother on maternity leave who wasn’t invited to an informal work Christmas party was deemed to have experienced discrimination. Ensure there are appropriate food and drink choices at the party for individuals who are pregnant or breastfeeding. 
  • Age – when selecting the venue or engaging in physical activities 
  • Disability – assess the venue’s accessibility and transportation options. Offer diverse food and drink choices to accommodate specific medical conditions. 
  • Religion or belief – employers should be considerate of non-Christian beliefs, both in terms of how the event is labelled and in terms of food and alcohol. Care should also be taken around events clashing with important dates/times for those of other religions.  

Data Protection. 

Certain information that employers might collect from employees before the Christmas party falls under special category data as per data protection legislation. This includes specific dietary needs, home addresses, contact details, and medical information (such as requirements for venue adjustments due to disability or long-term illness). Permission explicitly from the employee is required to share this data with the venue. 

Additional data protection concerns involve openly discussing work-related matters or colleagues in the presence of those who shouldn’t have access to such information, sharing photos without consent, and individuals recording staff performances, presentations, awards, and management speeches. The accessibility of smartphones and social media increases the risk of sharing photos that could negatively impact careers and the company’s reputation. 

However, when approached appropriately, sharing images on social media can also act as an effective means to showcase company culture. Employers should take steps to promote their social media presence, ensuring that nothing inappropriate is shared. 

Employees may not feel safe attending due to various reasons such as mental health and COVID-19.  

Although COVID restrictions have been lifted for several years, there are still many people who are still particularly vulnerable to COVID, as well as winter viruses. Therefore, they may be fearful of attending large group activities like an office-wide Christmas party.  

These employees may worry that not participating in the Christmas party could impact their future opportunities, potentially exclude them from promotions, result in a breakdown in relationships with managers, or be perceived as a lack of teamwork. 

For those still practicing social distancing, the challenges of being away from home may pose difficulties for remote workers and/or individuals with caregiving responsibilities. Some individuals may opt out of the party due to mental health concerns like anxiety or depression, or because of challenges related to substance use disorders. 

Employers need to consider various individual circumstances of each employee, ensure that no one feels they must attend if doing so would make them feel unsafe or uncomfortable.  

Employers’ responsibility for the wrongful actions of employees during Christmas parties. 

In an employment context, vicarious liability refers to an employer being held responsible for the actions of an employee if there is a significant connection between those actions and the employee’s job duties. It’s important to note that the employer’s innocence in the matter doesn’t invalidate this liability. 

Vicarious liability might also apply to a connection deemed ‘similar to employment,’ a perspective supported by the Supreme Court. 

For instance, in Chief Constable of the Lincolnshire Police v Stubbs and others, the Employment Appeal Tribunal (EAT) determined that an employer could be vicariously liable for an incident of sexual harassment that occurred in a pub outside working hours. The EAT reasoned that social gathering away from the workplace, involving employees either immediately after work or during an organised party, were considered part of the ‘course of employment.’ 

When there is employee misconduct during a work event, the initial presumption is that the employer will be held responsible. However, the employer can establish a defence by demonstrating that they took reasonable and practical measures to prevent the misconduct. 

It’s essential to extend this consideration to the online domain. The recognised duty of care by an employer encompasses an employee’s home if it functions as a workplace. While untested, the liability associated with in-person work events may also be applicable to online events occurring in employees’ homes. 

Let’s also look at the online aspect. We already know that an employer’s responsibility extends to an employee’s home if it’s also their workspace. Even though it hasn’t been tried and tested, the accountability tied to in-person work events might just apply to online events happening in our homes. 

Getting the balance right 

Festive gatherings are a wonderful chance for management teams to show appreciation to their staff and acknowledge their committed efforts over the year. 

Furthermore, it serves as a potent way to motivate your teams, nurture employee retention, and ideally enhance productivity as you move into the new year. 

It’s important to strike a balance, allowing employees to unwind at the event while also taking steps to minimise any risks. Here’s how we can do that: 

  • Distinguish between official events, where there’s a potential for employer liability, and unofficial ones, which are generally less risky. 
  • Brief managers to lead by example, keeping an eye out for situations that might lead to issues. 
  • Provide clear guidance on expected behaviour, emphasising that standard workplace rules still apply, with zero tolerance for harassment, discrimination, or any misconduct. 
  • Moderate the alcohol flow to prevent excessive consumption. 
  • Conduct risk assessments to minimise accidents and incidents. 
  • Ensure employees are familiar with the complaints process. 
  • Take complaints seriously, investigate as needed, and address any incidents or allegations promptly and according to standard procedures and policies. 

Hugh James, a leading UK law firm ranked in the top 100, shared their insights, ensuring legal compliance in the workplace this festive season are considered:

As set out there can be legal pitfalls associated with holding office Christmas parties. Although Christmas parties are a clear way for team members to get to know each other and to reward staff, Christmas parties are considered to be an extension of the workplace so employers will be responsible for the actions of their employees.  

Many problems can arise if a member of staff feels they have been discriminated against under the Equality Act 2010. Unfortunately, usually due to alcohol consumption or the less formal nature of an office party the risks of harassment or inappropriate banter can increase.  

However, employers should seek to uphold the same standards of expected behaviour and must take care to ensure that they are not held responsible for the actions of employees at work Christmas parties.  

If employees do behave objectionably at a Christmas party, this may lead to a grievance being raised by other employees or to the instigation of a disciplinary process. These should be dealt with in the usual way, and advice should be sought in terms of mitigating the risk of any litigation. Employers may wish to consider whether they need a specific section in their staff handbook or code of conduct about social events. 

It is advisable to remind employees before the party of the need to act responsibly and to reiterate the standards of expected behaviour. It is also important to ensure everyone is treated equally, the venue is accessible to all, alternative dietary requirements are catered for, and any entertainment provided does not have the potential to offend.